The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have announced another extension to flexibility relating to in-person Form I-9 compliance. The policy, which was originally announced on March 19, 2020, was previously set to expire on April 30, 2022. Through this new extension, the policy will remain in effect until October 31, 2022.

Below are a few points that employers may want to keep in mind as this compliance flexibility policy extends into October 2022:

• From the start of the flexibility on March 20, 2020, until the policy update on March 31, 2021, ICE’s position was that an employer’s entire workforce must have been 100 percent remote in order to use the virtual review option, though ICE also indicated that any future audits or enforcement actions would be handled on a case-by-case basis.
• Since April 1, 2021, the virtual review option has been available only for employees working remotely due to COVID-19 precautions. Employees choosing to work remotely for any other reason must have their I-9 document verification conducted in person, in accordance with standard I-9 verification procedures.
• ICE’s initial guidance indicated that as soon as the flexibility policy expired, all I-9 verifications that utilized the virtual review option would need to be verified in person within three business days. Under the updated guidance, the in-person verification process is triggered by either the expiration of the flexibility policy or an employee’s commencement of non-remote employment on a regular, consistent, or predictable basis, whichever occurs first.
• According to DHS, once either of the two conditions above occurs for any given employee, an employer must coordinate an in-person meeting with the employee, review physical I-9 documents, and, once the physical inspection has taken place, add the following notations to Section 2’s “Additional Information” field or to Section 3 of Form I-9, as appropriate: the phrase “documents physically examined,” the date of the inspection, and the initials of the reviewer.